Earlier this week, the Supreme Court debated the issue of racial discrimination in jury selection. The argument stemmed from a Georgia case in which an all-white jury convicted Timothy Foster, a black man, of murdering an elderly white woman and then sentenced him to death. The killing happened nearly three decades ago, but the defense lawyers didn’t obtain the prosecution’s notes until 2006 through an open-records request. Those notes showed what Foster’s lead attorney characterized as “an arsenal of smoking guns” with regards to evidence of racial discrimination.
Prosecutors in the Foster case offered reasons other than discrimination for keeping black jurors out, but Justice Elena Kagan wasn’t buying it ( ” . . . what it really was, was they wanted to get the black people off the jury,” she said). The Supreme Court issued a decision in 1986 that was supposed to stop courts from violating the Sixth Amendment—which promises criminal defendants a trial by an “impartial jury”—though it’s been relatively toothless since. Prosecutors often resort to using “race-neutral” terms to get blacks excluded from jury duty and courts have been too eager to accept them.
It’s an age-old problem that Steve Bogira addressed in a May 13, 2005, feature for the Reader—“A Jury of Whose Peers.”
In it, Bogira notes that minorities, especially minority males, were being excluded from Cook County trials. He surveyed five trials in 2005 and found 16 of the 60 jurors were black or Hispanic—27 percent in a county whose adult population was 41 percent black or Hispanic.
Those kinds of disparities weren’t unusual, wrote Bogira:
“Walk into a jury trial in the criminal courthouse at 26th and California on any day, and you’ll likely see a minority male in the defendant’s chair and hardly any minority males in the jury box. That’s true not only in Cook County but in urban courthouses throughout the nation. There’s no simple explanation for this, and no simple solution.”
Back then, there was a glimmer of hope to solve these injustices in the form of a proposed “Fair Jury Act” in Illinois. The act mandated one juror from the 12 subcircuits closest to the courthouse, which would have automatically led to more Cook County juries consisting of residents of underrepresented poor and minority neighborhoods. Alas! Even though it was sponsored by Oak Park Democrat Don Harmon and pushed through the Senate executive committee by its Democratic members in April 2005, it languished there. Finally in January of 2007, the Fair Jury Act died and was never acted upon again.